Writing in a "Statement" accompanying the denial of certiorari in Calhoun v. United States today, Justice Sotomayor (joined by Justice Breyer) sought to "dispel any doubt whether the Court’s denial of
certiorari should be understood to signal our tolerance of a
federal prosecutor’s racially charged remark."

Defendant Calhoun's intent to participate in a drug conspiracy was a central issue and the defendant took the stand. As Sotomayor explains:

The prosecutor pressed Calhoun
repeatedly to explain why he did not want to be in the
hotel room. Eventually, the District Judge told the prose-
cutor to move on. That is when the prosecutor asked,
“You’ve got African-Americans, you’ve got Hispanics,
you’ve got a bag full of money. Does that tell you—a light bulb
doesn’t go off in your head and say, This is a drug deal?”

For Sotomayor, such prosecutorial argument threatens to violate the equal protection guarentee as well as the defendant's right to an impartial jury. She also castigated the government's original position on appeal that the prosecutor's argument was merely "impolitic," and agreed with a Fifth Circuit Judge who noted that the prosecutor's argument clearly "crossed the line."

But the unusual posture of the case - - - including issues preserved for appeal - - - meant that Sotomayor's Statement was a statement, and not a dissent from the denial of certiorari. But a strong statement it certainly was: